Kylleen Hargrave-Thomas v. Joan Yukins

374 F.3d 383

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 9, 2004
• Docket: 02-2152
• Status: Published

Opinions

NELSON, J., delivered the opinion of the court, in which COOK, J., joined. CLAY, J. (pp. 391-94), delivered a separate dissenting opinion.

DAVID A. NELSON, Circuit Judge.

This is an appeal from an order granting a writ of habeas corpus. The key issue is whether-the state trial court’s refusal to hold an evidentiary hearing on certain ineffective assistance claims which the petitioner had asserted in a timely motion for a new trial constituted “cause” for the petitioner’s subsequent failure to assert a different ineffective assistance claim in her direct appeal. We conclude that the denial of an evidentiary hearing on the particular ineffective assistance claims that were asserted initially did not constitute cause for the delay (which proved to be fatal) in asserting the new ineffective assistance claim. Accordingly, and because the procedural default cannot be excused on other grounds, we shall reverse .the grant of the writ.

I

After a bench trial in a Michigan state court, the petitioner, Kylleen Hargrave-Thomas, was found guilty of first degree murder and arson. The court determined that early one morning Ms. Hargrave-Thomas entered the home of her boyfriend while he was sleeping, stabbed him in the heart with a knife she had taken from his kitchen, and set his bed on fire. She was sentenced to life in prison.

■ Ms. Hargrave-Thomas moved for a new trial, arguing, among other things, she had been denied effective assistance of counsel by reason of the fact that her trial lawyers had neglected to move for the suppression of certain evidence and had failed to object to alleged prosecutorial misconduct. Ms. Hargrave-Thomas asked the court to hold an evidentiary hearing if it could not grant the requested relief on the existing record.

The prosecution opposed the motion and argued that an evidentiary hearing was unnecessary. The acts or omissions of counsel cited by Ms. Hargrave-Thomas were already matters of record, the prosecution maintained, and the record showed they lacked merit. The trial court accepted the prosecution’s argument and denied the motion for a new trial without conducting an evidentiary hearing.

Ms. Hargrave-Thomas then appealed her conviction, asserting the same ineffective assistance claims she had raised in her motion for a new trial. She also moved for a remand to the trial court for an eviden-tiary hearing. The state court of appeals denied the remand motion “for failure to persuade the Court of the necessity of a remand at this time.” The court went on to affirm Ms. Hargrave-Thomas’ conviction, holding among other things that Har-grave-Thomas had not established that she had been prejudiced by the alleged deficiencies in her lawyers’ performance. The Michigan Supreme Court denied Ms. Hargrave-Thomas’ application for leave to appeal.

Next, represented by new counsel, Ms. Hargrave-Thomas filed a motion with the trial court seeking post-appeal relief from judgment under Chapter 6.500 of the Michigan Court Rules. The motion raised a new claim of ineffective assistance of trial counsel — one that Ms. Hargrave-Thomas acknowledged had not been raised in her motion for a new trial or in her appeal. This new claim was based on her trial counsel’s alleged failure to investigate the case and interview witnesses. Ms. Hargrave-Thomas asked the trial court to order her immediate release or, in the alternative, to allow discovery and to hold an evidentiary hearing.

The state argued, in response, that consideration of the new ineffective assistance claim was barred by M.C.R. 6.508(D)(3), Ms. Hargrave-Thomas having failed to establish “good cause” for not raising the claim on appeal and “actual prejudice” resulting from the allegedly ineffective assistance.¹ Hargrave-Thomas replied that she could not have raised the failure-to-investigate claim on appeal because the facts supporting that claim were not in the trial record and were not known to her at the time.

The trial court denied the motion for relief from judgment on both procedural and substantive grounds. First, the court held that Ms. Hargrave-Thomas “fail[ed] to establish ‘good cause’ for not raising” the new ineffective assistance claim on appeal. The court then addressed the merits of the claim and rejected it on the ground that an attorney’s failure to investigate “do[es] not constitute ineffective assistance of counsel.” The court did not hold an evidentiary hearing.

Ms. Hargrave-Thomas sought leave to appeal, but both the court of appeals and the supreme court denied leave on the ground that Hargrave-Thomas had failed “to meet the burden of establishing entitlement to relief under MCR 6.508(D).”

Ms. Hargrave-Thomas then filed her federal court petition for a writ of habeas corpus. The petition asserted four grounds for relief, one of which was a tripartite ineffective assistance claim. The claim was based on (1) trial counsel’s alleged failure to investigate and interview witnesses, (2) the failure to move to suppress evidence, and (3) the failure to object to alleged prosecutorial misconduct. With respect to the failure-to-investigate branch of the ineffective assistance claim, the state responded that the Michigan courts had rejected the claim on procedural grounds and Ms. Hargrave-Thomas had not shown “cause” for her procedural default.

Prior to the hearing on Ms. Hargrave-Thomas’ petition, the district court instructed counsel for both parties to be prepared to discuss what the court perceived as a “Catch-22.” Because Ms. Har-grave-Thomas’ requests for an evidentiary hearing were denied, the court said, she was not able to raise her failure-to-investigate claim on direct appeal. And because she had not raised the failure-to-investigate claim on direct appeal, she was barred from raising it in her collateral proceeding. “It thus appears,” the district court said, that “the state procedural rules prevented Petitioner from raising her failure-to-investigate claim until she reached this Court.”

After argument, the district court concluded that the denial of the requests for an evidentiary hearing constituted “cause” for Ms. Hargrave-Thomas’ procedural default. The court further concluded that Hargrave-Thomas was prejudiced by her trial attorneys’ failure to investigate. The court therefore ordered that Hargrave-Thomas be granted a new trial or be released from custody. (The court rejected Hargrave-Thomas’ other claims for relief, including the remaining branches of her ineffective assistance claim.) The state has filed a timely notice of appeal.

II

In general, a federal court may not consider a claim for habeas corpus relief if the claim was procedurally defaulted in state court — ie., if the last state court to render a judgment in the case rejected the claim because it was not presented in accordance with the state’s procedural rules. See, e.g., Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). A procedurally defaulted claim may be considered in federal habeas corpus proceedings only if the petitioner either shows “cause” for his failure to comply with the state’s procedural rules and “prejudice” resulting from the alleged violation of federal law or shows that the federal court’s refusal to consider the claim will result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see, e.g., Harris, 489 U.S. at 262, 109 S.Ct. 1038.

The question presented in the case at bar is whether the district court erred in ruling that “cause” and “prejudice” excused the procedural default of Ms. Hargrave-Thomas’ failure-to-investigate claim. The district court’s application of the “cause and prejudice” rules must be reviewed de novo. See, e.g., Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Because we are reviewing a federal court’s application of legal rules, and not the state courts’ adjudication of the claim, we are not called upon to determine whether any state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d). Such a determination would become necessary if we were to conclude that the failure-to-investigate claim is not procedurally barred — ie., if we were to reach the merits of the claim. For reasons to which we now turn, however, we conclude that Har-grave-Thomas’ claim is procedurally barred.

A

It seems clear that the last state court to render judgment in Ms. Hargrave-Thomas’ case rejected her failure-to-investigate claim on procedural grounds. Ms. Hargrave-Thomas, it will be recalled, did not present the claim on direct appeal before raising it in her collateral motion for relief from judgment. That omission violated a state procedural rule, Michigan Court Rule 6.508(D)(3), which generally precludes relief from judgment “if the motion ... alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence.... ” The Michigan Supreme Court, like the trial court and the court of appeals, cited M.C.R. 6.508(D) in rejecting Hargrave-Thomas’ failure-to-investigate claim.

Our precedents establish that the state supreme court’s one-sentence order — an order saying simply that Ms. Hargrave-Thomas “failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)” — “was based on an independent and adequate state procedural rule.” Simpson v. Jones, 238 F.3d 399, 407 (6th Cir.2000); cf. Burroughs v. Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002), modified, 35 Fed.Appx. 402 (6th Cir. 2002). Despite its brevity, the order constituted a “reasoned” judgment that adequately explained its procedural basis. Because the Michigan Supreme Court “expressly stated” that Hargrave-Thomas’ claim was “barred by MCR 6.508(D),” see Simpson, 238 F.3d at 408, the federal courts may not review that claim absent “cause and prejudice” or a “fundamental miscarriage of justice.” See Harris, 489 U.S. at 262-63, 109 S.Ct. 1038.

B

The “cause” standard in procedural default cases “requires the petitioner to show that ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim in state court.” McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Such factors may include “interference by officials,” attorney error rising to the level of ineffective assistance of counsel, and “a showing that the factual or legal basis for a claim was not reasonably available.” Id. at 493-94, 106 S.Ct. 2639 (internal quotation marks omitted). As we have seen, the district court concluded that the denial of Ms. Hargrave-Thomas’ requests for an evidentiary hearing constituted “cause” for her failure to raise the failure-to-investigate claim on direct appeal. This conclusion, we believe, was erroneous.

In People v. Ginther, 390 Mich. 436, 212 N.W.2d 922, 925 (1973), the Supreme Court of Michigan held that a criminal defendant should move for a new trial and seek to make a separate factual record in the trial court if the trial record does not cover the claims he wishes to raise on appeal. Ms. Hargrave-Thomas followed that procedure with respect to her original claims of ineffective assistance — i.e., the claims that her trial attorneys should have moved to suppress evidence and should have objected to alleged prosecutorial misconduct. The trial court declined to hold an evidentiary hearing (and the court of appeals declined to remand for such a hearing), presumably because the claims then in question could be disposed of on the existing record.

Ms. Hargrave-Thomas’ position seems to be that she should have been granted a Ginther hearing to develop an ineffective assistance claim different from the claims she raised in her motion for a new trial and on direct appeal. We find no basis for this position in Michigan law. Ginther authorizes the creation of a record to support claims which the defendant “wishes to urge on appeal” — not claims which the defendant has expressed no wish to urge on appeal. Ginther, 212 N.W.2d at 925. Neither Ginther nor, to our knowledge, any other Michigan authority permits the use of an evidentiary hearing to illuminate claims which have not been asserted or to unearth claims of which the defendant may be unaware.²

Had Ms. Hargrave-Thomas raised the failure-to-investigate claim in her motion for a new trial, and had she requested a Ginther hearing in connection with that claim, we have no reason to suppose that her request would not have been granted. Under the circumstances, we believe that it was Ms. Hargrave-Thomas’ failure to raise the claim, and not any misguided action of the state courts, that caused the procedural default. Ms. Hargrave-Thom-as never having alleged ineffective assistance on the part of her post-trial and appellate counsel, this failure does not constitute an “objective factor external to [her] defense.” Carrier, 477 U.S. at 488, 106 S.Ct. 2639.

Ms. Hargrave-Thomas contends that she had no way of knowing about her failure-to-investigate claim when she filed her new trial motion; she contends, in other words, that “the factual ... basis for [the] claim was not reasonably available” to her at that time. Id. We are not persuaded. Even if Hargrave-Thomas had no meaningful communication with her trial attorneys about the preparation of her case, she knew from her attendance at trial that the attorneys did not call any witnesses — a fact that might easily lead one to suspect inadequate preparation. Moreover, the attorney representing Ms. Hargrave-Thomas after the trial could have interviewed the trial attorneys to discover any potential claims.³ And Har-grave-Thomas was able to raise the failure-to-investigate claim in her motion for relief from judgment, after all, without having had the benefit of an evidentiary hearing.

We are not persuaded, in short, that the state courts’ refusal to order a Ginther hearing constituted “cause” for Ms. Har-grave-Thomas’ procedural default. Both “cause” and “prejudice” must be shown when a habeas petitioner seeks to excuse a procedural default, see Carrier, 477 U.S. at 494-96, 106 S.Ct. 2639, so we need not decide whether Hargrave-Thomas has shown “prejudice” resulting from her trial attorneys’ alleged failure to investigate. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

C

As we have said, a procedurally defaulted claim may be reviewed in habeas proceedings despite the absence of a showing of “cause” if such review is necessary to avoid a fundamental miscarriage of justice. See, e.g., Coleman, 501 U.S. at 750, 111 S.Ct. 2546. The “fundamental miscarriage of justice” test is met only in the “extraordinary case” where “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Carrier, 477 U.S. at 496, 106 S.Ct. 2639; see Schlup v. Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him” in the light of the evidence that was not presented at trial. Schlup, 513 U.S. at 327, 115 S.Ct. 851.

Applying this standard, we are unable to conclude that Ms. HargraveThomas has shown it probable that she is actually innocent. Hargrave-Thomas relies primarily on five affidavits, each of which was executed about six years after the events at issue.⁴ None of the affiants testified live at the hearing on the habeas petition.

According to the affidavit of Deborah Smulsky, a co-worker, Ms. Hargrave-Thomas said on the day before the murder that the decedent, Joe Bernal, had proposed marriage the previous night. Har-grave-Thomas argues that this evidence undercuts the prosecution’s theory as to motive — namely, that Bernal had spurned Hargrave-Thomas. But there is no necessary conflict between Ms. Smulsky’s testimony and the prosecution’s theory. Har-grave-Thomas could have misled Smulsky'. Or Bernal could have proposed one day and retracted the proposal the next. Because Smulsky’s testimony does not compel a finding that Hargrave-Thomas lacked motive, we think a reasonable fact-finder could have convicted Hargrave-Thomas despite the new evidence.

Ms.' Hargrave-Thomas’ sons, Nathan and John, said in their affidavits that their mother awoke them on the day of the murder at 6:15 a.m. and 6:80 a.m. respectively, and that she seemed to be behaving normally then. Dennis Hewitt, Nathan’s guidance counselor, similarly swore that Hargrave-Thomas was not upset or agitated when she met with him between 7:30 and 8:00 that same morning. This evidence'might have aided the defense at trial by showing that Hargrave-Thomas was calm and composed within an hour or two after Mr. Bernal’s bed is thought to have been set on fire. Calmness does not always mean innocence, however, and the probative value of this evidence, we believe, falls short of what is required.

Finally, Wesley Sibu, a newspaper delivery person, stated in his affidavit that he saw “a man in a uniform” — possibly a policeman or fire-fighter — at Mr. Bernal’s house at 4:80 on the morning of the murder. The man told him that there had been a fire, but Mr. Sibu did not see any police cars or fire trucks. These facts could suggest that the “man in a uniform” was the perpetrator. The district court found Sibu’s affidavit “especially significant” because other evidence suggested that another potential suspect, Ms. Har-grave-Thomas’ former boyfriend, “may have been falsely representing himself as a police officer.”

There are substantial inconsistencies, however, between Mr. Sibu’s affidavit— executed six years after the fact — and statements he made closer in time to the murder and arson. At Ms. Hargrave-Thomas’ preliminary examination, Sibu said that he saw a police car and spoke with a police officer at 4:30 a.m., and that he was not sure whether that was the day of or the day after the fire. He also said he was “positive” that Mr. Bernal’s garage door was closed when he spoke with the officer; in his affidavit he stated that the door was three-quarters open. Moreover, Sibu told police on the day of the fire that when he delivered the paper at about 4:30 that morning “there were no cars in the driveway or the street, and he didn’t notice anything unusual.” Presented with these inconsistencies, a reasonable juror could easily find Mr. Sibu’s latest account unpersuasive.

In "sum, we cannot say that “no juror, acting reasonably, would have voted to find [Ms. Hargrave-Thomas] guilty” in the light of the proffered affidavits. Schlup, 513 U.S. at 329, 115 S.Ct. 851. The other evidence cited in Hargrave-Thomas’ brief — none of which directly exculpates her — also fails to compel a finding of actual innocence.⁵ We conclude that the “miscarriage of justice” exception does not excuse Hargrave-Thomas’ procedural default.

Thé order granting Ms. Hargrave-Thomas’ petition for a writ of habeas corpus is REVERSED, and the case is REMANDED to the district court for entry of an order dismissing the petition.

1 . M.C.R.6.508(D)(3) provides, in part, that "[t]he court may not grant [post-appeal] relief to the defendant if the motion

"(3)... alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this sub-chapter, unless the defendant demonstrates

"(a) good cause for failure to raise such grounds on appeal or in the prior motion, and

"(b) actual prejudice from the alleged irregularities that support the claim for relief.

"The court may waive the 'good cause' requirement of subrule (D)(3)(a) if it concludes that there is a significant possibility that the defendant is innocent of the crime.”

2 . Our understanding of Michigan law on this point accords, we believe, with that of the Michigan Supreme Court. In rejecting Ms. Hargrave-Thomas’ failure-to-investigate claim on the basis of procedural default, that court necessarily determined that the refusal to hold a Ginther hearing did not constitute "good cause” for the default. See M.C.R. 6.508(D)(3). In the Supreme Court's view, therefore, the trial court was not required to hold a hearing for the purpose of developing unraised claims.

3 . Ms. Hargrave-Thomas contends that her post-trial and appellate counsel had no duty to investigate potential claims that were not apparent from the trial record. Regardless of whether this contention (which the state disputes) is correct, it seems clear that no court rule or trial court ruling prevented Hargrave-Thomas' counsel from conducting such an investigation.

4 . The district court found these affidavits sufficient to show prejudice resulting from the alleged failure to investigate. Without commenting on that finding, we note that the "fundamental miscarriage of justice” test requires a petitioner "to make a stronger showing than that needed to establish prejudice.” Schlup, 513 U.S. at 327, 115 S.Ct. 851.

5 . Ms. Hargrave-Thomas points to a polygraph test flunked by her former boyfriend, Bob Stone. The results of that test indicate that Mr. Stone answered one or more of the following questions untruthfully: (l)Do you know for sure who killed Joe? (2) Did you kill Joe? (3) Did you assist in any way to cover up this crime? (4) Are you withholding from me any information concerning the death of Joe? (All of Stone's answers wfere ''no.'') Because the test did not determine which of the questions were- answered untruthfully, this evidence does not directly exculpate Hargrave-Thomas. It could prove nothing more, for example, than that Hargrave-Thomas confessed to Stone.